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Beer distributor now in federal court

SIOUX FALLS, S.D. - For seven years, the estate of revered Lakota warrior Crazy Horse tried to stop a company from using his name to promote and sell a malt liquor.

After past attempts at litigation failed, the Crazy Horse estate, headed by Seth Big Crow of Rosebud, filed a complaint in federal court that asks for injunctive and compensatory relief.

A previous attempt to stop the sale of the malt liquor failed after the 10th Circuit Court of Appeals ruled the Rosebud Tribal Court had no standing because the malt liquor was neither sold nor bottled on the reservation. That was two years ago.

Hornell Brewing Co. of New York, G. Heileman Brewing Co. of Wisconsin, John Ferolito and Don Vultaggio, individually; and Ferolito and Vultaggio and Sons of New York, a subsidiary of Hornell Brewing Co., are named defendants in the lawsuit.

The companies challenged the original suit filed in tribal court. The appellate court left the door open for the suit to be filed in federal court, attorneys for the estate said.

"This suit will now be tried on the merits," said Robert Gogh, attorney for the Crazy Horse estate, adding the original was not. The cause of action in this newest lawsuit will remain the same as in the original action.

"We've been waiting for this day for a long time. We will not stop until they take the name Crazy Horse off the malt liquor bottle," Big Crow said.

As a result of the attempt to remove Crazy Horse from the label of the malt liquor and the refusal of the companies to do so, a nationwide boycott was organized against another product of the Ferolito and Vultaggio and Sons by the Crazy Horse Defense Project. The company distributes a tea product under the brand name of Arizona Iced Tea, focus of the boycott. The defense project's official stand is that the boycott will continue until Hornell, Heileman and Ferolito and Vultaggio either recognize the legal rights of the Crazy Horse family or when the companies settle or are ordered to pay compensation to the estate.

Officials of the defense project argue the boycott has had an effect on the sale of the malt liquor and the iced tea. "Sales of the tea are slumping and the malt liquor is almost non-existent in Minnesota," said Phyllis Tousey Frederick, national coordinator for the defense project.

The complaint filed in federal court reiterates the content of Crazy Horse's character, that he strongly urged his family and followers to reject the Euro-American use of alcohol. He did not sign a treaty with the federal government and oral history tells that he asked that his name not be mentioned among non-Indian people.

Hornell Brewing and the other companies were denied U.S. Patent and Trademark authorization for the label that reads "The Original Crazy Horse Malt Liquor," court documents claim.

"The derogatory nature of defendants' use of the name of Crazy Horse in association with the production, promotion and sale of a high-potency alcoholic beverage, and the devastating effect alcohol has had, and continues to have, upon Lakota people, compelled plaintiffs to break their historic silence at this time and to stand up for their honored relation by ending this unlawful and wholly improper misappropriation," the court document states.

New counts incorporated into the latest lawsuit state that under Lakota law, the ownership of a person's name are personal, familial and spiritual property rights and are not extinguished when that person dies. The rights to the name continue with the extended family or tiospaye and remain in the family's jurisdiction for the next seven generations. Federal law and some state law guarantee the protection of intellectual property rights for 100 years. A mathematical formula will extend the Lakota law of seven generations beyond the 100-year limitation, attorneys said.

The federal government has recognized legal authority of the Rosebud Sioux Tribe to impose ordinances that become legal under tribal and federal jurisdictions. The complaint states that the name of Crazy Horse in association with the alcoholic beverage disparages his name, spirit and reputation. And by misappropriation of the name, it further disparages the family and violates the estate's rights of publicity in the name, image and persona of Crazy Horse. The rights of publicity, although included in the tribal court lawsuit, were not included as part of the case in appeal.

Because Hornell Brewing Co., along with the other companies, chose to use the name and purported image of Crazy Horse for the purpose of selling the malt beverage caused disparaging effects on the family, the most recent effort in federal court asks for punitive damages.

The complaint states that Hornell "acted maliciously, with oppression, and in conscious disregard of (Crazy Horse's estate and family) rights.

"Defendants have ignored the option of labeling this malt liquor product with any other name or after any other region of the country where it is actually produced.

"Instead, defendants have deliberately reached into the heart of the Lakota Nation, of which South Dakota is a part, and have misappropriated the name of its most cherished leader with the knowledge that their conduct would result in severe emotional distress for the descendants of Tasunka Witko."

What the Crazy Horse family asks is that the court issue a permanent injunction that would stop any further use of the name of Crazy Horse in any manner as is relates to any commercial product. It also asks that all items, labels, bottles, containers and displays be destroyed.

Compensatory damages would include profits from past and ongoing sales to be awarded to the Crazy Horse estate, and triple damages of profits for violations of the Lanham Act. The act prohibits the use of any word, term, name, symbol or device or false or misleading description of fact that would cause confusion or misrepresentation of the origin of the product or any container of a product.

The fact that the label uses Dakota Hills and Montana Hills, the complaint alleges, misrepresents the origin of the malt liquor.

Further confusion may arise from labeling on the bottle that uses the names of Sitting Bull, Crazy Horse and Custer in association with the Black Hills of South Dakota, the complaint states. It may be assumed the family approved and is associated with the product, the court document states.

Big Crow also asks the court to order Hornell Brewing and the other defendant companies to use the media to properly inform the public about the truth concerning Crazy Horse and his wish to disassociate himself and his followers from alcoholic beverages.

Gogh said a reply from the defendants could take two months.